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Case comment: Occupational Health and Safety Association versus Union of India by Arup Kumar Poddar

Introduction:

Supreme Court has decided number of cases where the environmental degradation was questioned severely and also protected various components of the environment while applying various provisions of the environmental legislation including principles of international environmental law.  In the year 1997, the Supreme Court in a number of cases decided in favour of environmental protection and given a balanced opinion also for the workers working in the industries.  For example, Calcutta Tannery, Taz trapezium cases while shifting and relocating the existing industries, Supreme Court provided monetary relief to the workers working in the industries.  However, there are very few cases where the health issues of the workers working in the hazardous industries have been dealt with by the judiciary.  The present case comment will try to focus on the health issues of workers working in the thermal power plants.

Facts of the case:

In the present case the petitioner represents about 130 Coal Fired Thermal Power Plants (CFTPPs) these power plants are available all over India in different parts of the State.  However, there were no proper occupational health services with adequate facilities for health delivery system available in these plants.  Even there was lack of proper guidelines with respect to health and safety.

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s Whereas the legislations like Factories Act, Boilers Act, Employees State Insurance Act, Compensation Act, the Water (Prevention and Control of Pollution) Act, the Air (Prevention and Control of Pollution) Act, the Environmental (Protection) Act, etc. are in place.  It is interesting to note here that in spite of having the above-mentioned legislations there are continuous lack of proper health delivery system and evaluation of occupational health status of workers.  Because of the lack of implementation of the above-mentioned legislations, the workers who are working in the factories and industries are continuously exposed to the most hazardous health problem and living style also got affected.

An interlocutory application was filed by the petitioner respectively one in the year 2005 and the other one in the year 2007 where the serious health issues where highlighted for the workers who were working in different power plants and were suffering for years.  Petitioners submitted a report which was indicating that most of the workers were suffering from pulmonary function test abnormalities, lung function abnormalities, skin diseases, asthama and so on.

In the present case the petitioner is a non profit occupational health and safety organisation, and registered under the Societies Registration Act 1860.

Relief Sought:

The petitioner brought the case under article 32 of the Indian Constitution.  The petitioner requested for the following relief:

  1. to issue a writ of mandamus or any other order, direction including framing of guidelines with respect to the operational safety and health regulation;
  2. two issues such orders, directions by which union of India shall constitute a committee form a monitoring of the working of thermal power plants in India;
  3. to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to pay compensation to the workers who are victims of occupational health disorders and to frame a scheme of compensation for workers in case of operational health disorders;
  4. two issues orders, directions to the respondent under which the respondent shall be compelled to notify the recommendations is contained in paragraph 35 of the petition as guideline to be followed by thermal power plant.

Interim Order & Directions:

This supreme court after the hearing this petition issued an interim order on January 30, 2008.  The case was decided by two judges, they are K.S. Panicker Radhakrishnan and A.K. Sikri. In the interim order, the Supreme Court issued certain directions:

  1. Medical checkup to be done to all the workers who are in coal-fired thermal power station.  This medical checkup shall be binding in nature.  First medical checkup should take place within six months.  Thereafter the medical checkup shall be done yearly basis;
  2. workers found ill and undergoing with treatment shall not be terminated from job;
  3. the provisions of the Workmen’s Compensation Act 1923 shall be taken into consideration while paying compensation to the workers suffering from any occupational diseases, ailment or accident;
  4. workers should not suffered from the occupational health hazards, therefore, modern protective equipment shall be provided to workmen as recommended by an expert body in consultation with the trade unions;
  5. there should be devices to be adapted within the industries by which the dust, heat, noise, vibration and radiation can be controlled.  This controlling process may be in the line of recommendation given by the National Institute of Occupational Health Ahemdabad, Gujarat;
  6. there must be health audit as devised by the Bureau of Indian Standards, all employees shall follow the code of practice on occupational safety and health;
  7. workers showed adept safety methods while handling, collecting and disposal of hazardous wastes;
  8. a committee to be established with the help of experts from National Institute of occupational health including the representatives of the trade union, representatives from the non-governmental organisation to look into the health and safety of workers and make recommendations for their upliftment.

Learned Additional Solicitor General, Mr. P.P. Malhotra, on behalf of the Government of India submitted the fact that the guidelines provided by Supreme Court have been accepted by the central government.  The government also clarified that actions shall be taken under the relevant provisions of laws, which are already in existence.  Similarly, the Supreme Court also directed the Ministry of Labour that the concern Ministry should take appropriate steps in the line of the suggestions made herein so that the employees working in the concerned industry can also be benefited with the help of these suggestions generated. However, the council on behalf of the central government clearly mentioned that directions like workers should adopt safety methods, while handling collecting and disposal of hazardous waste and a committee to be established with the help of experts from the National Institute of operational health of including representatives from the trade union and group non-governmental organisation, the government shall examine and fix the way of enforcement.

This writ petition came back before the Supreme Court again on 6.9.2010 and was disposed off by the court accordingly.  Subsequently, the government submitted the report on the occupational health and safety.  The report was submitted by the National Institute of occupational health, where the protest from non-governmental organisation, trade union, personnel from National Institute of occupational health and safety, where present to give recommendations relating to collection, disposal and handling of hazardous waste.  The committee had to look into the feasibility of working condition of the workers/employees working within the industry which are hazardous in nature.  The committee was of the opinion that most of the industries that are lacking the occupational health and safety guidelines, therefore, the suggestions, whatever generated from the central government must be instituted almost in all the industries which are hazardous in nature.

Objective of Environment (Protection) Act:

The Environmental (Protection) Act, 1986 gives us a wide range of guidelines which are pertinent for the hazardous industries as well.  Similarly, Sections 6, 8, 25 of the environment protection act provide sufficient instrument in the hand of central government to frame regulation, under which the handling, collection and disposal of hazardous waste can be regulated and controlled well. Therefore, the Environment Protection Act is also applicable to the industries where the workers are facing health problem because the industries are hazardous in nature.  Accordingly, as per the provisions of the Environment Protection Act, it is the central government who is responsible to ensure health and safety of the worker those who are working in these results industries.

Senior counsel, Mr Colin Gonsalves, raised objections while stating that the central government and the committee both misunderstood the directions given by the Supreme Court, basically, in terms of quick remedy to the workers who were suffering with the health issues as working in the hazardous industries.  According to senior counsel, the central government and the committee both overlooked the necessity of time bound operation for the medical treatment to the workers who are suffering from occupational health and disease.  Similarly, senior counsel also pointed out that the workers who are facing serious and irrevocable occupational health issue should be entitled for compensation amount under the provisions of appropriate law.  It can be added here that the central government has the responsibility to enforce the provisions of the law which are applicable to the society and people who are suffering with occupational health and safety issue, but also to bring the relevant and appropriate policy which are inevitable for the purpose of providing substantial social justice to the workers who are suffering under the occupational health and safety measure those who are working in the hazardous industries. Directive principles of State policy, which is the integral part of the Indian Constitution, entrusts on the central government substantial duty to bring policy which can provide social and economic justice to the weaker sections of society.

It is interesting to note that, the additional Solicitor General clearly pointed out that it is in government and the committee, established for the purpose of looking into the health and safety to the workers who are working in the thermal power plant, appropriately looked into various problems and suggested the way out under which proper actions to be undertaken by the management of the thermal power plant.  Additional Solicitor General made it very clear that it is not surprising for the management not to look into the health issues of the workers, rather the management is efficient enough to look into the feasible options of health issues of the workers, because management is well aware of the fact that the power plant functions with the help of the workers day and night.

Case Reference:

The Supreme Court in Consumer Education and Research Centre V. Union of India case (1995) 3 SCC 42, made it very clear that the health of the worker is protected as fundamental right under article 21 of the Indian Constitution.  Once article 21 of the Indian Constitution is compared with article 39, article 41, article 43, article 48A, give a magnificent provision of fundamental human right to the worker who are working in hazardous industries.  Supreme Court made it very clear that when the workers are exposed to such industries which are hazardous in nature, it is the duty of the central government to bring policies under which the health of the workers can be protected.  Not only that, the family of those workers and their health should also be protected by the central government and by the management of the industries.

Right to Healthy Environment:

Right to healthy environment is one of the fundamental rights enshrined under article 21 of the Indian Constitution.  Article 21 of the Indian Constitution speaks loudly about right to live with human dignity.  It is also true that the same article also speaks of right to healthy Environment. However, Article 21 of Indian Constitution while saying the right to healthy environment depends on other articles as well.  For example, Clauses (e) and (f) of the Article 39, Article 41, Article 42 of the Indian Constitution are few to name who play vital role in giving the final shape of right to healthy environment as enshrined under Article 21 of the Indian Constitution.  So, all the above-mentioned provisions of the Indian Constitution finally give the shape of protection in of the environment and also protection and safety of the health of workers.  Supreme Court here analysed the fact that it is the minimum duty of the States to provide minimum human dignity to all persons including workers who are exposed to hazardous industries.  Similarly, when the workers are working in thermal power plant, an industry which is hazardous in nature and also associated with occupational health and safety issues round-the-clock, the duty and responsibility of the central government and the management of the industry become double fold under these situations keeping in mind that the workers are working to those industries which may be hazardous in nature but at the same time the workers are involved in the industries which are generating power for the national interest, of the National growth and for overall development of the nation.

It is important to note here that India is the largest producer of coal in the world.  For running the thermal power plant India needs for about 14,000,000 tonnes of coal per year. As per the report of the Ministry of power, Government of India we have at this moment 130 thermal power plant available in India.  The total electricity produced in India in which 2/3 is supplied by the thermal power plant.  Therefore, thermal power plant is inevitable for the growth of the nation.  In the circumstances when the workers are forced to work in industries which are hazardous in nature, one cannot compromise with the obligatory presence of workers role is inevitable because that play vital role in the overall development of the nation.

Report of the Committee:

The committee constituted by the National Institute of occupational health including with the representatives from the trade union and also from the non-government organisation produced a report before the Supreme Court.  Few basic features of the port as under:

  1. use of hazardous material in insulation-certain materials like asbestos, glass wool, etc are frequently used in thermal power plant.  If these materials are inherited by the workers or if they come into contact in workers is keen for I that because huge health disorder.  Similarly, as asbestos is also carcinogenic element which may cause cancer to the workers. Nowadays, safer substitutes, such as paramid, polyvinyl alcohol (PVA), cellulose, polyacrylonitrile, glass fibres, graphite are available, maybe explore for alternative use.
  2. Different provisions of the Environment Protection Act and also from time to time the changes brought in the act should be enforced to ensure the appropriate maintenance of emission and discharge standards, ash utilization and management of hazardous wastes.  Similarly, health and safety of workers are to be ensured by the management of the thermal power plant.
  3. Flying ash from the thermal power plant should be utilised as per the guidelines given by the Central Pollution Control Board in the 2009-10.
  4. So far possible automatic machine for handling the coal may be installed in the thermal power plant, so that the workers may have opportunity to keep themselves away from coal.
  5. There should be broad guideline for the purpose of looking into the health issues of workers in the thermal power plant.  It is also important that there must be manpower who would train the workers to meet with the need in case of emergencies.  The services which are to be emergency team within the thermal power plant should be independent from the hospital services.  However, there must be relation between the hospital services and also the services within the thermal plant, with relation to treatment of patient in case of emergency.  The workers should be trained well that how to apply first aid in case of emergencies.
  6. Systematic and periodic awareness scheme and programme should be operated to the workers of the thermal power plant.  Here, community awareness programme also should be encouraged among and between the workers and their families.
  7. Periodic medical checkup and examination of health of the workers are mandatorily to be undertaken by the management of the thermal power plant.  As per the Factories Act the periodic chest x-ray is recommended to the workers, however, the committee thinks it fit that yearly checkup of the chest with the help of x-ray, may not be possible, because that may create some other health issues to the workers therefore, chest x-ray can be possible initially for two years thereafter at the lapse of 10 years, chest x-ray can be possible.
  8. Health records of all the workers to be prepared in documentation form and also in chronological order and preferably should be stored in an electronic form.
  9. All the thermal Power plant should prepare vision statement on environment, health and safety guidelines.  There, different policy and legislation should also be kept as a part of reference material.  Management of the power plant should without fail look into the enforcement of the various provisions which are related with the protection of the health and safety of the workers working in hazardous industries.
  10. Finally, the committee also thinks that the document on health and safety of the workers working in the hazardous industries should be in place at the earliest.  In this regard, the different relevant provisions of the Factories Act should be consulted for the preparation and management of the health and safety issue of the workers not only who are holding permanent position but also for those workers who are out of contract or casually appointed as well.

The report of the expert committee for that gives an indication that the workers who are working in these coal-based thermal power plant, generally exposed to hazardous activities such as exposed to dust, heat, noise, vibration and waste.  Similarly, the workers also inhale dust generated from the burning of coal and suffer from respiratory problem throughout the life.  Because of Hughes exposed to noise, the workers suffer from low hearing, high blood pressure, radio vascular disorder, muscle and bone disorder, etc.

Findings:

The Supreme Court, while deciding the case, clearly pointed out that thermal power plants are not present in one state of India; rather the thermal power plants are available all over India.  Therefore, the respective states, where the thermal power plants are available, High Court can also take lead role in this regard and supervise the functioning of these thermal power plant and workers thereof.  The state High Court can ensure that the vision statements with relation to protection of the health of workers in the coal-based thermal power plants are adequately followed as per the provisions of the various relevant legislations available in India.  The state High Court would also ensure that the health delivery system is followed appropriately in the same state and providing solutions to various health issues to the workers working in hazardous industries.  At the same time, High Court should ensure that the medical treatment is offered to all the workers working in thermal power plants.

Conclusion:

From the above discussion, it can be concluded that the present case was decided by the Supreme Court in order to protect the health of the workers working in the thermal power plants.  It is very evident that in the year 1991 Supreme Court clearly defined the mandate of rights to healthy environment as a part of Article 21 of the Indian Constitution while deciding the Subhash Kumar versus State of Bihar case of 1991.  The industry not only should take due care in order to protect the people, who are residing in the vicinity of industry, from its hazardous activities, but also protect the health of the workers who are working within the industry and are exposed to various hazardous activities.  The committee constituted by the National Institute of occupational health made various recommendations, which the Supreme Court has accepted for further implementation with the help of state High Courts.

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